NEGATIVE PLEDGE AGREEMENT [Property Name] [Property Address]
Exhibit
10.16
| STATE OF TEXAS | This Instrument Prepared By |
| and After Recording Return to: | |
| COUNTY OF XXXXXX | Xxxxxx X. XxxXxxxxx, Esq. |
| Goulston & Storrs | |
| 000 Xxxxxxxx Xxxxxx | |
| Xxxxxx, XX 00000-0000 |
[Property
Name]
[Property
Address]
This
Agreement is made as of March 11, 2005, between XXXXXXX REIT OPERATING
PARTNERSHIP III LP (the “Company”), and KEYBANK NATIONAL ASSOCIATION, with its
head office at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, in its capacity as
Administrative Agent (in such capacity, hereinafter called the “Administrative
Agent”) for the Lenders under and as defined in the Loan Agreement referred to
below.
For
consideration paid, and to secure the payment of any and all Obligations under
(and as defined in) the Revolving Credit Agreement dated as of March 11, 2005
(as the same may be amended, modified and supplemented from time to time, the
“Loan Agreement”) among the Company, the other parties who are or from time to
time become a borrower under the Loan Agreement, the Lenders, the Administrative
Agent and KeyBanc Capital Markets, as Lead Arranger and Book Manager, the
parties hereby agree as follows:
1. Representation
of Company.
To
induce the Lenders to make the loans evidenced by the Notes (as defined in
the
Loan Agreement), the Company hereby represents and warrants that it has good
and
marketable fee, record and insurable title to each of the Eligible Unencumbered
Properties, which term is defined in the Loan Agreement and which includes
the
property listed on Exhibit A hereto
(the
“Negative Pledge Property”). In addition, the Company hereby represents and
warrants that it will keep the Negative Pledge Property free from all mortgages,
liens, charges and encumbrances whatsoever, except for Permitted Liens (as
defined in the Loan Agreement).
2. Negative
Pledge.
The
Company will not, and will not permit any other Person (as defined in the Loan
Agreement) to, create, assume, incur, or suffer to exist any lien, mortgage,
pledge, charge, security interest or other encumbrance of any kind on or with
respect to the Negative Pledge Property (other than a Permitted Lien). If the
Company breaches this covenant, it shall constitute an event of default
hereunder, and an Event of Default under the Loan Agreement.
3. Remedies.
Upon
the occurrence of any event of default hereunder or an Event of Default under
the Loan Agreement, the Administrative Agent and the Lenders may pursue any
remedy available to them under the Loan Agreement, the other
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Loan
Documents (as defined in the Loan Agreement), at law or in equity, including
without limitation any remedy provided for by the Uniform Commercial Code.
All
remedies shall be cumulative and not exclusive.
4. Waivers
by Administrative Agent and the Lenders.
No
course of dealing by the Administrative Agent and the Lenders, or delay in
exercising any of their remedies hereunder or under the Loan Agreement or any
other Loan Document following an event of default hereunder, shall affect the
Administrative Agent’s or any Lender’s rights later to take such action with
respect thereto, and no waiver as to any one default or event of default shall
affect the Administrative Agent’s or any Lender’s rights as to any other default
or event of default. No waiver by the Administrative Agent or the Lenders shall
be effective unless in writing and signed by the Administrative Agent or the
Lenders and Company to which the waiver relates.
5. Term.
This
Agreement shall remain in full force and effect until the Maturity Date.
Maturity Date shall mean March 11, 2008 or such earlier date on which the
Revolving Credit Loans (as defined in the Loan Agreement) shall become due
and
payable pursuant to the terms thereof. On the Maturity Date, this Negative
Pledge shall terminate, and the Administrative Agent shall, upon request and
at
the Company’s expense, execute all such documentation necessary to terminate any
financing statement filed in connection with this negative pledge and to release
any recording of this Negative Pledge in any real estate records.
6. Notices.
Unless
otherwise specified herein, all notices hereunder to any party hereto shall
be
in writing and shall be given in accordance with Section 21 of the Loan
Agreement, and thereby shall be deemed to have been given.
7. Counterparts.
This
document may be signed in counterparts and will be fully effective as so
signed.
8. Applicable
Law.
The
terms of this Agreement shall be governed by and construed under the laws of
the
State of New York (without regard to conflict of laws provisions).
9. Amendment.
This
Agreement may not be changed or amended orally, but only by an agreement in
writing signed by the party to be charged.
10.
Severability.
If any
term or provision of this Agreement, or the application thereof to any person
or
circumstance, shall to any extent be invalid or unenforceable, the remainder
of
this Agreement, or the application of such term or provision to person or
circumstances other than those as to which it is invalid or unenforceable,
shall
not be affected thereby, and each term and provision of this Agreement shall
be
valid and enforceable to the fullest extent permitted by law.
11. Principal
Amount Secured.
The
principal amount secured by the Negative Pledge Property is up to
$100,000,000.00.
(signatures
on next page)
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IN
WITNESS WHEREOF, each of the parties hereto has executed this Agreement, or
has
caused this Agreement to be executed on its behalf by its duly authorized
officer, as set forth below, all as of the date first hereinabove
written.
|
XXXXXXX
REIT OPERATING PARTNERSHIP III LP
|
|
|
By:
Xxxxxxx REIT Operating Partnership III GP LLC, a Texas
limited liability company, its Sole General Partner
|
|
|
By: Xxxxxxx REIT Operating Partnership, L.P., a
Delaware
limited partnership, its Sole Member
|
|
|
WITNESS:
__________________
|
By:
Xxxxxxx Commercial Properties REIT, a Maryland
real estate investment trust, its Sole General Partner
By:
_________________________________
Xxxxx X. Xxxxxxx, President
|
STATE
OF
TEXAS:
SS
COUNTY
OF
XXXXXX:
__________ __, 2005
Then
personally appeared Xxxxx X. Xxxxxxx, President of Xxxxxxx Commercial Properties
REIT, the sole general partner of Xxxxxxx REIT Operating Partnership, L.P.,
which is the sole member of Xxxxxxx REIT Operating Partnership III GP LLC,
which
is the sole general partner of Xxxxxxx REIT Partnership III LP and acknowledged
the foregoing instrument to be his free act and deed on behalf of Xxxxxxx
Commercial Properties REIT, Xxxxxxx REIT Operating Partnership, L.P., Xxxxxxx
REIT Operating Partnership III GP LLC and Xxxxxxx REIT Partnership III
L.P.
Before
me,
_______________________________
Notary
Public
My
commission
expires: ____________
[Signatures
continued on Next Page]
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|
WITNESS:
|
KEYBANK
NATIONAL ASSOCIATION, as
Administrative
Agent
|
| ________________________ |
By:_____________________________
Name:
Title:
|
|
|
|
STATE
OF
_________:
SS
COUNTY
OF
_______:
__________ __, 2005
Then
personally appeared ________________, ________________ of KeyBank National
Association, and acknowledged the foregoing instrument to be his free act and
deed on behalf of KeyBank National Association.
Before
me,
______________________________
Notary
Public
My
commission
expires: ___________
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